Who Has Standing to Contest a Will in New York? Pecuniary Interest and SCPA 1410

By Albert Goodwin, Esq., New York estates and probate attorney, Law Offices of Albert Goodwin. Last reviewed: [MONTH YEAR].

In New York, you can contest a will only if admitting that will to probate would cost you money. Lawyers call this a pecuniary interest. The rule comes from Surrogate's Court Procedure Act (SCPA) § 1410, which allows objections to probate from "any person whose interest in property or in the estate of the testator would be adversely affected by the admission of the will to probate." If you do not meet that test, the Surrogate's Court will dismiss your objections without ever looking at whether the will is valid.

This page explains who meets that test, who does not, and how standing is proven and challenged in a New York probate proceeding. If you already know you have standing and want to discuss bringing a contest, see our will contest attorney page. For disputes among heirs that do not involve challenging the will itself, see our NYC inheritance dispute page.

The Short Answer: Two Groups Have Standing

In practice, people with standing to object to a New York will fall into two groups:

1. Distributees who would receive more without the will. A distributee is a person who would inherit under New York's intestacy statute, EPTL § 4-1.1, if there were no will. If the will gives you less than your intestate share, or nothing, you are adversely affected and have standing.
2. Beneficiaries under a prior will who would receive more under that prior will. If an earlier will left you more than the will now offered for probate, you have standing, even if you are not related to the decedent at all.

The broader term "person interested" is defined in SCPA § 103. It generally covers anyone entitled, or allegedly entitled, to share as a beneficiary in the estate. Being a person interested is not enough by itself to object to probate. Under SCPA § 1410, your interest must be one that the will would actually harm.

A Worked Example

D dies survived by his spouse, A, and their two children, B and C. D's parents, X and Y, and his sibling, Z, are also alive. D's only will leaves everything to A, B and C. X, Y and Z want to contest it.

The court will not hear their objections. Under EPTL § 4-1.1, when a decedent leaves a spouse and children, the spouse receives $50,000 plus one-half of the balance, and the children share the rest. Parents and siblings receive nothing. Setting the will aside would not put any money in the hands of X, Y or Z, so none of them is adversely affected.

Change one fact. Suppose D signed an earlier will that left a gift to his parents, X and Y. If the new will were denied probate, that earlier will could be offered instead, and X and Y would take their gift. X and Y now have standing to object to the new will. Z still does not, because Z received nothing under either will and would inherit nothing by intestacy.

Standing Quick Reference

The table below is a starting point. Standing always turns on the specific family tree, the terms of every will that exists, and how large each share would be. Have an attorney confirm your position before you act.

Standing Based on a Prior Will

Standing based on an earlier will raises proof issues that standing based on family relationship does not.

• You must produce the prior will or account for it: Courts generally expect the original, or a copy along with evidence that it was properly signed and witnessed. A prior will that cannot be found may be presumed revoked if it was last in the decedent's possession. Proving a lost will is governed by SCPA § 1407 and requires specific proof.
• The prior will must actually give you more: Compare what you receive under each instrument. If the earlier will gave you the same amount or less, you are not adversely affected.
• Every later will matters: If the decedent signed several wills, a beneficiary under the earliest one generally must show that each later will would fail. Defeating only the most recent will may simply revive another will that also leaves you out.

A person named in another will that has been filed with the Surrogate's Court, whose interest the propounded will would harm, is among those who must receive a citation under SCPA § 1403. That notice often gives prior-will beneficiaries their first formal opportunity to appear.

Revocable and Lifetime Trusts

Many New York estate plans put most of the assets in a revocable trust, with a short pour-over will. Challenging only the will may accomplish little if the trust controls the money.

The standing logic for trusts is the same. A person who would benefit if a trust amendment were set aside, for example a beneficiary under an earlier version of the trust, has an interest that the amendment harms. New York's Surrogate's Courts have broad jurisdiction over the affairs of decedents under SCPA §§ 201 and 209, and they regularly hear disputes over a decedent's lifetime trusts. The Supreme Court has concurrent jurisdiction. When the trust dispute is tied to an estate already before the Surrogate, the Surrogate's Court is usually where it is heard. For more on trust disputes, see our NYC trust attorney page.

How Standing Is Raised and Decided

Standing is a threshold issue. It can come up at several points in a New York probate proceeding:

1. When you appear and ask for SCPA 1404 examinations: Under SCPA § 1404, a person who may object can examine the attesting witnesses, the attorney who drafted the will, the nominated executors and the proponents before deciding whether to file objections. The proponent may argue that you lack standing to take these examinations at all.
2. When objections are filed: Objections are generally due shortly after the 1404 examinations are completed, often within 10 days, unless the court sets a different schedule. Confirm the deadline in your case. Once objections are filed, the proponent can move to dismiss them for lack of standing.
3. At a hearing on standing: If the facts are disputed, for example whether a claimed relationship exists or whether a prior will was validly signed, the court may hold a hearing on standing before reaching the merits of the contest.

Relationship-based standing is usually proven with vital records such as birth, marriage and death certificates. Where family relationships are complicated, the court may require additional proof. See our pages on the affidavit of heirship and when an affidavit of heir is required. For where these steps fall in a typical case, see our sample NYC probate timeline.

Standing and No-Contest (In Terrorem) Clauses

Having standing tells you whether you can object. It does not tell you whether you should. If the will gives you a gift and contains a no-contest clause, also called an in terrorem clause, an unsuccessful contest can cost you that gift.

How New York treats no-contest clauses

New York enforces these clauses, but courts construe them strictly because they cause a forfeiture. A court will look at the exact wording of the clause and the testator's intent. In Matter of Singer, 13 N.Y.3d 447 (2009), the Court of Appeals held that a beneficiary's conduct did not trigger the clause in that case, even though the conduct fell outside the statutory safe harbors, after reviewing the language of the will and the testator's intent.

Statutory safe harbors under EPTL 3-3.5

EPTL § 3-3.5 lists actions that do not forfeit a gift under a no-contest clause. They include:

• A contest brought on behalf of an infant or incompetent.
• A contest, based on probable cause, claiming that the will is a forgery or was revoked by a later will.
• An objection to the court's jurisdiction.
• Disclosing to the court information relevant to the probate proceeding.
• Refusing or failing to join in the petition for probate.
• Pre-objection SCPA 1404 examinations of the attesting witnesses, the drafting attorney, the nominated executors and the proponents, and, on a showing of special circumstances, other persons the court allows.
• A construction proceeding to determine what the will means.

The 1404 safe harbor is the reason many beneficiaries take examinations first. You can learn how the will was prepared and signed without risking your gift, then decide whether filing objections is worth it.

Comparing what you risk with what you could gain

The decision comes down to two numbers: the gift you would forfeit if the contest fails, and the amount you would receive if it succeeds.

Suppose a widowed parent leaves a $2,000,000 estate and two children. The will leaves Child 1 a $100,000 gift, leaves the rest to Child 2, and contains a no-contest clause. With no will, each child would take $1,000,000 under EPTL § 4-1.1. Child 1 risks $100,000 for a chance at $1,000,000.

Now change the gift to $900,000. Child 1 still has standing, because $900,000 is less than the $1,000,000 intestate share. But Child 1 would be risking $900,000 to gain $100,000. Few people would bring that contest unless the evidence was very strong.

A beneficiary who receives nothing, or only a token amount, has little to lose under a no-contest clause. A beneficiary close to the intestate share has a much harder decision.

Other Surrogate's Court Proceedings That Require an Interest

The same threshold question, whether you have a financial stake in the outcome, applies outside will contests:

• Compelling an accounting: SCPA § 2205 allows a person interested to petition to compel a fiduciary to account. See our estate accounting lawyers page.
• Removing an executor or administrator: SCPA § 711 allows a person interested to seek removal of a fiduciary. See our administrator removal attorney page.
• Objecting to an accounting: A beneficiary or other person interested may file objections to a fiduciary's account.
• Recovering estate property: Discovery and turnover proceedings under SCPA § 2103 are usually brought by the fiduciary. A beneficiary may be able to act when the fiduciary is the one holding the property. See our discovery and turnover proceeding page.

If your concern is how an executor is handling the estate rather than whether the will is valid, our page on breach of fiduciary duty may be the better starting point.

What to Bring to a Standing Review

Before you spend money on a contest, an attorney should confirm that you have standing. Gather what you can of the following:

• A copy of the will offered for probate. See whether beneficiaries are entitled to a copy of the will.
• Any earlier wills or trust documents, or information about where they may be.
• The citation or other papers you received from the Surrogate's Court.
• Basic family information: who survived the decedent, who died before, and any adoptions, marriages or divorces.
• A rough idea of the assets and how they are titled, including trusts, joint accounts and beneficiary designations.

A standing problem is cheaper to find at the start than after months of litigation end in dismissal.

Talk to a New York Estates Attorney

The Law Offices of Albert Goodwin represents clients in Surrogate's Courts in Manhattan, Brooklyn, Queens, the Bronx, Staten Island and Long Island. We can review your documents and tell you whether you have standing to object and what a contest would put at risk. Call 212-233-1233 to schedule a consultation.

This page provides general information about New York law and is not legal advice. Statutes and case law change. Read the cited provisions of the Surrogate's Court Procedure Act and the Estates, Powers and Trusts Law, and consult an attorney about your specific situation.